Barrett Family Trust (Migration)

[2018] AATA 620

Barrett Family Trust (Migration) [2018] AATA 620 (14 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Barrett Family Trust

CASE NUMBER:  1803653

DIBP REFERENCE(S):  BCC2017/2315158

MEMBER:Karen Synon

DATE:14 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 14 March 2018 at 1:43pm

CATCHWORDS

Migration – Applicant notified of the Tribunal’s decision via its authorised representative – Application for review not made in accordance with the relevant legislation

LEGISLATION

Migration Act 1958, ss 347, 494C
Migration Regulations 1994, r 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 30 November 2017, to refuse a nomination under the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 12 February 2018.  For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

4. On reviewing the application the Tribunal formed the preliminary view that it did not have jurisdiction because the application for review was not received within the prescribed period for lodgement.  The Tribunal wrote to the applicant, via its authorised representative and registered migration agent by email on 14 February 2018 inviting written submissions on the issue of jurisdiction by 28 February 2018.

5. A response on 14 February 2018 contended that the decision contained a jurisdictional error because it did not include a refusal date.  As such it was a defective notice and the 21 calendar days is irrelevant.  A copy of the primary decision and covering letter was provided.

6. The Tribunal has considered this response however notes that the decision date of 30 November 2017 is clearly stated at the end of decision after the delegate’s name and Position Number.  While the date is typically also provided on the first page of the decision, and in this case is not, the Tribunal is satisfied that the decision date is included in the decision.  On this basis the Tribunal is not of the view that the primary decision was defective as asserted.

7. The material before the Tribunal indicates that the applicant was notified, via its authorised representative of the decision by letter dated 30 November 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 30 November 2017. Therefore the prescribed period to apply for review ended on 21 December 2017.

8. As the application for review was not received by the Tribunal until 12 February 2018 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

9. The Tribunal does not have jurisdiction in this matter.

   Karen Synon
   Member